We believe that the privilege of the committee and its members has been breached, has been violated.
On Monday, February 28, 2011, the chair surprised the committee members by raising what we believe were documents obtained by parliamentary privilege in the House of Commons before the committee had an opportunity to discuss the handling of the documents requested under the Standing Orders.
I would like to refer to O'Brien and Bosc, page 1071, where it states:
A document submitted to a committee becomes the property of the committee and forms part of the committee's records. Each committee must decide whether such documents will be made public or kept confidential. Confidential documents are for the exclusive use of the committee's members and staff for the duration of the session.
I'd also like to refer to O'Brien and Bosc, page 1032, where it states:
During Oral Questions in the House, a committee Chair may answer questions, provided they deal with the committee's proceedings or schedule and not with the substance of its work.
Mr. Chair, this presents several problems for the committee. According to chapter 20 of House of Commons Procedure and Practice, O'Brien and Bosc, page 1030:
The Chair is a key figure on any committee. Chairs are so important that when a committee does not have one, it is not considered properly constituted. It can undertake no work or other activities, and cannot exercise any of its powers.
O'Brien and Bosc go on to state:
As the presiding officer of the committee, the Chair does not move motions. Furthermore, the Chair does not vote, except in two situations: when a committee is considering a private bill, the Chair may vote together with other members of the committee; and, when there is an equality of voices (a tie), the Chair has the casting vote.
We believe that these rules exist to ensure that the chair is viewed as a neutral member of the committee who will ensure impartiality when the chair is performing his duties related to procedural administrative and representative responsibilities.
When the chair used information included in documents obtained through parliamentary privilege for partisan purposes before the committee had a chance to consider the said documents, we believe the chair demonstrated that he may no longer be viewed as impartial and neutral and that the committee's privilege appears to have been breached.
According to Standing Order 108(1)(a):
Standing committees shall be severally empowered to examine and enquire into all such matters as may be referred to them by the House, to report from time to time...and except when the House otherwise orders, to send for persons, papers and records....
Chapter 3 of O'Brien and Bosc states:
Privilege essentially belongs to the House as a whole; individual Members can only claim privilege insofar as any denial of their rights, or threat made to them, would impede the functioning of the House.
We are aware that members may say anything in the House and this does not constitute a question of privilege. However, we believe that in his partisan actions and decision to disclose the nature of the documents obtained by this committee through a motion of privilege, the chair has appeared to breach the committee's privilege insofar as he has impeded the functioning of the House.
We believe that he has impeded the functioning of the House in that he prematurely disclosed information that had not yet been considered by the committee, even though the committee sought legal and professional advice from Robert Walsh, Law Clerk and Parliamentary Counsel, and Ms. Chantal Bernier, the Assistant Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada. Therefore, it is our opinion that he breached the committee's privilege to serve his own purposes and that of his party.
Both the law clerk and the assistant privacy commissioner agreed that the committee must decide on how to treat the sensitive documents that it sent for by a motion adopted by the committee on Thursday, February 10, 2011, in connection with the study of the Auditor General of Canada on the Public Sector Integrity Commissioner.
Clearly, the committee had not decided how the documents would be treated, and therefore any action by the chair to discuss, disclose, or distribute any of the documents to anyone other than the committee members appears to be a breach of privilege.
Furthermore, despite the fact that the chair publicly discussed e-mails regarding a disclosure by a potential whistleblower, disregarding the fact that information relevant to whistleblowers and the Public Sector Integrity Commissioner's office is protected by the Privacy Act, the Public Servants Disclosure Protection Act, and the Personal Information Protection and Electronic Documents Act, the chair demonstrated that he knows that the committee has not discussed how the documents should be handled or to whom to distribute them.
The chair, in his own letter to Mr. Whitehall, legal counsel for the former integrity commissioner, writes: “I am unable to provide documents to you without instructions from the committee...”. Let me repeat that. The chair wrote in his letter to Mr. Whitehall, “I am unable to provide documents to you without instructions from the committee...”. The chair thought it was perfectly fine to go public with this information, but he couldn't disclose it to Mr. Whitehall.
In addition, with regard to correspondence with Madame Ouimet's legal representative on other issues related to committee business, the chair has again acted unilaterally. This has been ongoing for some time, and it is unacceptable to this committee. The reply sent to Mr. I.G. Whitehall by the chair on February 25, 2011, was sent without consultation or instruction from this committee. The committee received the original letter from Mr. I.G. Whitehall by e-mail on Thursday, February 24, at 11:38 a.m. The chair should have brought this issue up at the start of the committee meeting, with a draft in hand for the committee to consider. It could have been sent by courier to expedite delivery.
The chair circumvented the will of this committee. The chair has essentially said no to Madame Ouimet's representative's request for documents. We hope this will not cause Madame Ouimet to renege on her promise to appear before the committee on March 10.
In summary, we heard from both the law clerk and the Privacy Commissioner, who both cautioned the committee to deal with this confidential information very carefully. Even though the committee may not have had a specific rule in place, the committee was advised and cautioned on how to use this information and the chair chose not to follow that advice. Not only did the chair not follow that advice, but his actions actually contradicted that advice. He did the opposite.
When I asked the law clerk today whether this was appropriate, he said it was inappropriate.
Mr. Chair, that is our position on this matter, and we'd like to seek the opinion of other members of the committee.
Thank you.